ORDER OF THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
OF FEBRUARY 25, 2011
PROVISIONAL MEASURES REGARDING BRAZIL
MATTER OF THE SOCIO-EDUCATIONAL INTERNMENT FACILITY
HAVING SEEN:
1. The brief of the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission” or “the Commission") of December 30, 2010 and the annexes thereto, by which it submitted to the Inter- American Court of Human Rights (hereinafter the “Inter-American Court,” the "Court," or “the Tribunal") a request for provisional measures, according to Articles 63(2) of the American Convention on Human Rights (hereinafter the "American Convention" or “the Convention") and 27 of the Court's Rules of Procedure[1] (hereinafter “the Rules of Procedure”), in order for the Court to order the Federative Republic of Brazil (hereinafter "Brazil" or “the State") to adopt forthwith the measures necessary to protect the life and personal integrity of the children and adolescents deprived of liberty as well as other people in the Unidade de Internação Socioeducativa (hereinafter “UNIS” or “Socio-Educational Internment Facility”), located in the municipality of Cariacica, state of Espírito Santo, Brazil.
2. The note of January 3, 2011, wherein the Secretariat of the Court (hereinafter “the Secretariat"), following the instructions of the President of the Court (hereinafter “the President”) requested the State to submit, by no later than January 14, 2011: i) the observations it deems pertinent regarding this request for provisional measures, and ii) any other documentation it deems pertinent in order for the Court to be able to consider the request made by the Inter-American Commission using all the necessary information.
3. The brief of January 4, 2011, wherein the Inter-American Commission forwarded the Portuguese version of the request for provisional measures and the note of January 6, 2011, by which the Secretariat transmitted this document to the State.
4. The brief of January 7, 2011, wherein Brazil confirmed receipt of the brief in Portuguese (supra Having Seen clause 4) and requested clarification about the period established for the submission of the its answer.
5. The note of January 11, 2011, wherein the Secretariat, following the instructions of the President of the Court, confirmed that, in view of the fact that the brief in Portuguese of the Commission was received by the State on January 6, 2011, as an exception, the period established for the State to submit its observations would expire on January 17, 2011.
6. The brief of January 17, 2011, wherein the State forwarded its observations, without annexes, at the request of the Inter-American Commission.
7. The note of January 19, 2011, wherein the Secretariat, following the instructions of the President, requested that the State submit the annexes to its brief of January 17, 2011, and granted a term until February 1, 2011 for the Commission to forward the observations it considered relevant regarding the information presented by the State.
8. The brief and its annexes of January 24, 2011, wherein the Commission forwarded a copy of the complete case file of the processing of the precautionary measures.
9. The brief of February 1, 2011, wherein the Commission requested an extension of two days to present its observations.
10. The notes of February 2, 2011, wherein the Secretariat granted the extension requested by the Commission and reiterated to the State that it should submit the annexes to the brief of January 17, 2011.
11. The brief of February 3, 2011 and its annexes, by which the Commission submitted its observations to the information presented by Brazil, as well as additional information on the matter and the note of the Secretariat of February 7, 2011, wherein it transmitted this document to the State and requested the submission of the observations to be presented by no later than February 16, 2011.
12. The brief of February 16, 2011, wherein the State forwarded its observations to the additional information presented by the Commission.
13. The briefs of February 18 and 21, 2011 and the annexes thereto, wherein the State submitted the annexes to its briefs of January 17 and February 7, 2011, respectively, as well as additional documentation related to the Commission’s request.
14. The alleged facts that form the basis of the request for provisional measures filed by the Inter-American Commission, namely:
a) the request for precautionary measures received by the Commission on July 15, 2009, which was registered as MC-224-09 and was presented by the Centro de Defesa de Direitos Humanos da Serra do estado do Espírito Santo y Justiça Global [Center for the Defense of Human Rights of Serra of the state of Espirito Santo and Global Justice], regarding the situation of grave and immediate risk to the life and integrity of the children and adolescents deprived of liberty of the Socio-Educational Internment Facility. On November 25, 2009, the Commission adopted certain precautionary measures, which did not produce the desired effect regarding protection, “given that after the adoption of said measures, several incidents of violence took place and complaints regarding inhumane conditions of confinement have been filed.” Based on the foregoing and the request of the representatives of November 22, 2010, the Inter-American Commission decided to submit to the Court this request for provisional measures.
b) as background, the Commission presented information on events that took place in 2010, regarding precarious confinement conditions, riots, and rebellions; adolescent held in the court yard of the Facility in handcuffed and under supervision; lack of separation of inmates based on age, body build, and seriousness of the offence; complaints of assaults and torture to adolescents by the officers of UNIS and by other adolescents of the facility; plastic bullet shots, as well as verbal and physical assaults to adolescents during the searches, and accounts rendered as to the fact that units of the Grupo de Escolta Tática Prisional [Tatica Prison Guard Group] would enter the UNIS at dawn, using pepper spray, and undressing the adolescents, pouring cold water on them, and beating them;
c) that, in the last months of 2010, the following events took place:
i) on November 12, 2010, a riot broke out in the "Despertar" units, and a homicide attempt took place during a fight between inmates of unit 2;
ii) on December 13, 2010, a riot broke out in which several inmates climbed to the roof of the Facility;
iii) On January 31, 2011, before an escape attempt, external security agents of UNIS entered the Facility and assaulted the adolescents; as a result, five of them were injured and were taken to the Department of Legal Medicine for a forensic examination. According to the explanation given by the responsible authorities of the Facility, there was an escape attempt and, therefore, external security agents had to enter Wing C, which provoked the confrontation with the adolescents. However, from the stories of the adolescents, it appears that the injuries they suffered were inflicted on their backs, thereby raising doubts as to the alleged confrontation.
iv) On February 1, 2011, an adolescent was injured by other inmates in Despertar Unit I; another riot broke out due to the lack of medical care to an adolescent to which a local representative of the "Pastoral del Menor" [Ministry of the Minor] was called to intervene.
v) During the visits made by the representatives in the months of November 2010 and February 2011, they verified the existence of “floating” adolescents. These are adolescents whose lives are threatened and therefore spend the whole day in the facility’s court yard and are taken to their cell only at night, and
d) that, despite the reforms made by the State at the Internment Facility, its infrastructure is still inadequate, in light of the existence of deteriorated structures, unhealthy, damp spaces, without natural air and light, with leaks and garbage accumulation. Moreover, some adolescents were subject to a harsh discipline regime, similar to the one of a maximum-security prison, with very little opportunity to be outdoors, with little to no activity.
15. The arguments of the Commission to base the request for provisional measures, in which it pointed out that:
a) “there is sufficient evidence to consider that the State, through the authorities of the Socio-Educational Internment Facility, is not exercising an effective control over said premises,” and therefore, “it is not capable of ensuring the life and physical integrity of the people confined there.” To this end, “the management of the facility, on many occasions, has denied access to certain areas of the UNIS to petitioners and also to the Ministry of the Minor and also to a commission of judges of the National Council of Justice, under the argument that it could not guarantee the safety of the visitors";
b) “the level of chaos and the frequency with which these type of violent events and escapes occurred in the UNIS are absolutely incompatible with the minimum standards applicable at detention centers for children and adolescents";
c) it should be assumed prima facie that children and adolescents deprived of liberty are at a high level of unprotection whenever the circumstances suggest that the State does not comply with the minimum standards of prevention and assurance according to the corpus juris in matters related to juvenile justice;
d) whenever the State faces children and adolescents deprived of liberty, the State must assume its special role as guarantor with the utmost care and responsibility, and it must take into account the best interest of the child;
e) in the context of these riots and rebellions, there are “specific conditions of imminent risk that cause irreparable damage to the life and physical integrity of the children and adolescents deprived of liberty” by other inmates “in view of the inability of the State to protect them.” Moreover, regarding the requirement of irreparable damage, the Commission considers that the Court should take into account the impact of the proceedings and the omissions of the State;
f) the existence of an imminent risk that may cause irreparable damage to children and adolescents at the hands of the security forces or the guards of the facility, who usually respond in a disproportionate and repressive manner when these disturbances occur. Thus, Brazil has not proven the effective adoption of the mechanisms necessary to prevent the occurrence of these violent acts at UNIS and, in view of the State’s inability to effectively prevent the occurrence of these violent acts, “its only response is the use of force,” which causes “a certain and serious risk, which could be avoided, of causing irreparable damage, to the [inmates] and to other people affected by these acts inside the facility";
g) moreover, “these outbreaks of violence and chaos cause a situation of risk wherein grave situations of emergencies such as fires and other collective disasters might occur”;
h) the seriousness of the alleged facts, the imminent risk and the high probability that an irreparable damage might occur, confirm that the conditions of gravity and urgency required for the application of the standards of the Convention regarding provisional measures have been met. Furthermore, in light of “the confinement conditions at the UNIS, the lack of prevention, effective control, and classification of its population, the Commission considers that the conditions for the granting of the provisional measures have been fulfilled in this matter.” The foregoing is contrary to the international standards of juvenile justice according to the best interest of the child, and it is even more important when the violent facts at the facility are taken into account, and
i) much of the information provided by the State deals with the processing of the case before the Commission, that is to say, it has been already analyzed and considered to be insufficient to guarantee effective control at the UNIS and, hence, to guarantee to all inmates the right to life and personal integrity.
16. The request filed by the Inter-American Commission for the Court, based on the facts mentioned and according to Article 63(2) of the Convention and Article 27 of the Court's Rules of Procedure, to order Brazil to:
a) implement security measures to protect the life and physical integrity of the people confined at the Internment Facility;
b) provide the UNIS with sufficient and trained security personnel to prevent the occurrence of new violent acts;
c) adopt adequate measures to separate children and adolescents according to their age, type of offense, personal background, and other standards focusing on the best interest of the child;
d) present an updated list of the names, ages, legal situations, and units at which each one of the children and adolescents, inmates at UNIS, are located, and
e) take the necessary actions to ensure that the confinement conditions are compatible with the minimum standards of hygiene and health.
17. The observations and information presented by the State regarding the measures adopted to protect the life and integrity of the adolescents, inter alia:
a) regarding the lack of separation of adolescents according to their age, seriousness of the offense, body build, or level of risk, the State “acknowledged the difficulty in accommodating the adolescents according to strict standards and indicated that it is trying to accommodate the young people from 17 to 21 years old, in one part of the facility, and the inmates whose resocialization process is more complex, in another part of the center;